The defense mainly relied on by the defendant was that in August, 1878, the parties had a settlement of the matters in controversy, by the terms of which the defendant was to pay for the machines unsold and return the balance to the plaintiff, and that in pursuance thereof the defendant shipped the machines to the plaintiff at Rockford, where he resided. The testimony as to whether a settlement was made, as claimed by the defendant, was contradictory, and if the jury had been properly instructed as to the law, we should not be inclined to disturb their finding; but upon a material point in the case, two instructions were given by the court below, one at the request of the plaintiff, and the other of defendant, which are diametrically opposed to each other, and could hardly have failed to confuse and mislead the jury. One of the provisions of the contract between the parties required the defendant to guarantee the sale of all machines ordered, and in the event that more remained on hand unsold at the end of the season than the commissions arising from sales would pay for, to give approved notes for the balance, when required by the plaintiff.
In the month of August, 1878, Charles H. Emerson, an agent of the plaintiff, called on the defendant, at Benson, and demanded payment for the machines then in the possession of the defendant and remaining unsold, pursuant to the provisions of the contract; but the defendant refused to acknowledge his liability to give notes, and declined to settle upon any other terms than by a return of the machines to the plaintiff and payment for those sold. This the plaintiff’s agent refused, whereupon negotiations were closed.
The defendant’s agent testifies, in substance, that he refused to settle by giving notes, and Emerson says the same thing.
Upon this state of facts, the court gave this instruction for the plaintiff: “ The court instructs the jury that if they believe from the evidence in the case that the agent for the plaintiff requested the defendant, by his agent, to settle with the agent of the plaintiff in August, 1878, according to the terms and conditions of the contracts in question for the machines then on hand, and that the defendant, by his agent, refused to settle, then no further demand for the notes provided for by said contracts was necessary; and even although the jury may believe from the evidence no demand other than as above set forth for such notes was made by Emerson, at that time, still the verdict must be for the plaintiff, if the jury find from the evidence there was such request and refusal as above stated, the law upon that point is for the plaintiff.”
And for the defendant the court gave this instruction: u The jury are instructed that under the pleadings in this case it is necessary for the plaintiff, in order to be entitled to recover upon the agreements declared upon, .to prove a request or demand upon the defendant for ‘ approved notes’ spoken of in said agreements; and unless the jury are satisfied, from the evidence, that such demand or request has been made, the verdict should be for the defendant.”
It will be seen at a glance that these instructions are in direct conflict with each other; for if, as a matter of law, no demand for the notes was necessary, by reason of the defendant having refused to perform the contract when requested to do so, then the plaintiff was not bound to make such demand before suit; and yet the court instructs the jury for the plaintiff that if the defendant refused to perform when requested, demand for the notes was waived; and for the defendant that proof that a demand was made was indispensable to entitle the plaintiff to recover. It is the duty of the court to see that instructions, which should be a guide to the jury, are harmonious, and such as neither confuse nor mislead. Quinn v. Donovan, 85 Ill. 194.
Objection is made by appellant to the form of the verdict.
In the record of the proceedings, the form of the verdict is given thus: “ We, the jury, find the issues for the defendant.” In the bill of exceptions thus: “If the jury find for the defendant, the form of their verdict will be: ‘We, the jury, find the issues for the defendant.’ ” This verdict was signed by all the jury. It is sufficient to say that if we were required to accept the form of the verdict as set forth in the bill of exceptions as the one actually returned by the verdict rather than the form as stated in the record of the proceedings, the objection comes too late. It cannot be made for the first time in this court. Schlenker v. E-isley, 3 Scam. 483; Bank, etc. v. Batty, 4 lb. 200; Parmlee v. Smith, 21 111. 620.
There can be no doubt as to what the jury intended, and if the verdict was informal, the court, upon the suggestion of either party, would have it put in form in presence of the jury. Such has been the uniform ruling by the Supreme Court of this State. Failing to object to the form of the verdict in the court below, appellant is not permitted to make the point here.
For the errors of the court below in improperly instructing the jury, the judgment is reversed and the case remanded for a new trial.
Reversed and remanded.